The Central Law Journal.

ST. LOUIS, JANUARY 16, 1891.

THE student of legal problems will find much to interest and puzzle him in the case of Keller v. Eureka Brick Machine Co., recently decided by the St. Louis Court of Appeals, and reported on page 55 of this issue. The question there for determination, is all the more perplexing, by reason of the fact that through the dearth of authorities upon the subject, it must be solved largely by the application of first principles. The question in the case is, whether a stockholder in a corporation who has lost or mislaid his certificates of stock, upon tendering sufficient indemnity, is entitled to the aid of a court of equity to compel the corporation to issue to him other certificates which on their face purport to be originals, and which contain no notice that they are issued in lieu of those claimed to have been lost. The opinion of the court, in the negative, by Judge Thompson, though able and plausible, is not, to our mind, entirely convincing, and certainly and certainly does not seem to be equitable.

THE banking community seems to have been considerably disturbed by the recent decision of Judge Gresham. in the case of Commercial National Bank v. Hamilton National Bank, which is in effect a blow at old and familiar rules governing collections. The question in that case, succinctly stated, was whether a bank which receives a draft that has previously been specially indorsed for collection through and by two or more banks, is liable to the first of these banks for the amount collected. Judge Gresham decided in the affirmative. The facts were, that the plaintiff sent to Fletcher & Sharp, bankers at Indianapolis, a draft indorsed "for collection." Fletcher & Sharp indorsed the draft for collection, and sent it to the defendant, at Ft. Wayne. The defendant collected the draft, and the same day credited Fletcher & Sharp with the proceeds, and advised them of the fact. On receipt of this advice, VOL. 32-No. 3.

Fletcher & Sharp charged the defendant, and credited the plaintiff, with the amount, and notified the latter. On July 15th the defendant posted a letter at Ft. Wayne, addressed to Winslow, Lanier & Co., bankers at New York, directing them to credit Fletcher & Sharp with the amount collected. The defendant, in good faith, directed that the credit be given to Fletcher & Sharp in New York, not knowing that they were indebted to Winslow, Lanier & Co. Fletcher & Sharp failed, on July 14th, which failure was known to the defendant in ample time to countermand the order mailed to New York. The

plaintiff addressed a letter to the defendant, claiming the collection, and demanding that it be remitted. The demand was refused, and this suit was brought to recover the amount. The demand was sustained by the court, because the indorsement "for collection" was clear and unambiguous., By such special indorsement, every holder received notice that he is merely an agent or subagent of the legal holder of the note, and had no power but that of a trustee for its transmission to the first indorser, and no testimony as to usage and custom among banks, can impair the legal force of the indorsement. The court relied chiefly upon White v. National Bank, 102 U. S. 658. Attention has been called to the fact that, so far as that case is concerned, the statement upon which Judge Gresham relied here, was a mere dictum, and that the point was not actually decided by the court. Without reference to whether the view of Justice Miller, in the White case, was or was not a mere dictum, and therefore authority upon the question, the decision of Judge Gresham is undoubtedly correct upon principle, though there is much to be said on the other side arising out of the character of bank deposits and negotiable paper. A draft, it is said, is a "courier without baggage." But if the draft bears several special indorsements, each of these is a distinct piece of baggage. Each gives notice to the last holder of the existence of possible liens. For instance, it may be said of this case, that the Hamilton bank received such an indorsed draft. The only course usage prescribed in dealing with it, was to start the proceeds of the draft, through Fletcher & Sharp, to the final destination, the plaintiff bank, that each of these sets of liens might be discharged in

its own order, by the parties cognizant of them. This the defcndants did. And if the proceeds were diverted from their intended use by acts of war, by fire or by accident, it was not through any fault of the defendant, and therefore some one else ought to bear the loss. In other words, if this decision is upheld by the Supreme Court of the United States, as some doubt, it puts upon the collecting bank, the duty in each instance, of following the proceeds of drafts collected by them to their final destination, no matter through how many hands it may be obliged to go. A recent case, wherein very much the same question is presented, is Armstrong v. National Bank, decided by the Court of Appeals of Kentucky. There it was held that where a bank which has received a draft for collection, sends it to another bank for that purpose, and, on being advised that the latter bank has collected the draft, credits the depositor, and then becomes insolvent without having received the money from the collecting bank, the depositor remains the owner of the draft, and is entitled to its proceeds from the collecting bank as against the receiver and the creditors of the insolvent bank.

NOTES OF RECENT DECISIONS.

FEDERAL COURTS JURISDICTION OF THE UNITED STATES SUPREME COURT- APPEAL FROM STATE COURT-FEDERAL QUESTION. The Supreme Court of the United States, in the case of Johnson v. Risk, 11 S. C. Rep. 111, made an important ruling as to its jurisdiction over questions litigated in a State court of a federal nature. The court, in effect, held in this case, that if the plaintiff in error wished to claim that this cause was disposed of by the decision of a federal question, he should have obtained the certificate of the supreme court to that effect, or the assertion in the judgment that such was the fact. Where there is a federal question, but the case may have been disposed of on some other independent ground, and it does not appear on which of the two grounds the judgment was based, then, if the independent ground was not a good and valid one, sufficient of itself to sustain the judgment, the

Supreme Court of the United States will take jurisdiction of the case, because when put to inference as to what points the State court decided, this court ought not to assume that it proceeded on grounds clearly untenable. But where a defense is distinctly made, resting on local statutes, this court ought not, in order to reach a federal question, resort to critical conjecture as to the action of the State court in the disposition of such defense. The court, after stating the facts and commenting upon the decisions of the Supreme Court of Tennessee in relation to the statutes of limitations of that State bearing upon the case, hold, that inasmuch, therefore, as, if the supreme court of the State had sustained the defense of the statute of limitations, it cannot perceive that such decision would have been erroneous, it does not appear that the judgment, as rendered, could not have been given without deciding the federal question, or that its decision was necessary to the determination of the cause, and that it was actually decided. The court cited Gormley v. Clark, 134 U. S. 338; De Sassure v. Gaillard, 127 U. S. 216; Klinger v. Missouri, 13 Wall. 257.

CRIMINAL LAW LARCENY ATTEMPT TO COMMIT. The Court of Appeals of New York, in People v. Moran, 25 N. E. Rep. 412, hold that under Pen. Code N. Y. § 34, defining an attempt as "an act done with intent to commit a crime, and tending but failing to effect its commission,' a person who in a crowd is seen to thrust his hand into the pocket of another, and withdraw it empty, can be convicted of an attempt to commit larceny, even though its commission may have been impossible because there was nothing in the pocket. Ruger, C. J., says:

The question whether an attempt to commit a crime has been made, is determinable solely by the condi tion of the actor's mind, and his conduct in the attempted consummation of his design. People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Crim. R. 104; Mackesey v. People, 6 Park. Crim. R. 114; 1 Amer. & Eng. Enc. Law, tit. "Attempt." So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in fact, had been, committed, and the punishment of such offender is just as essential to the protection of the public, as of one whose designs have been succesful. In the language of Bouvier's Law Dictionary, an "attempt" is an endeavor to do an act carried beyond mere preparation, but falling short of execution. Some conflict has been observed in English authorities on this subject, and it

may be conceded that the weight of authority in that country is in favor of the proposition that a person cannot be convicted of an attempt to steal from the pocket, without proof that there was something in the pocket to steal. Reg. v. McPherson (1857), Dears. & B. Cr. Cas. 197; Reg. v. Collins (1864), Leigh & C. 471. The cases in England, however, are not uniform on this subject, and the principle involved in the cases above cited was, we think, otherwise stated in Reg. v. Goodall, 2 Cox Crim. Cas. 41, where an attempt to commit a miscarriage was held to have been perpetrated on the body of a woman who was not at the time pregnant. See, also, Reg. v. Goodchild, 2 Car. & K. 293. In this country, however, the courts have uniformly refused to follow the cases of Reg. v. McPherson and Reg. v. Collins, and have adopted the more logical and rational rule that an attempt to commit a crime may be effectual, although, for some reason undiscoverable by the intending perpetrator, the crime, under existing circumstances, may be incapable of accomplishment. It would seem to be quite absurd to hold that an attempt to steal property from a person could not be predicated of a case where that person had secretly and suddenly removed the contents of one pocket to another and thus frustrated the attempt, or had so guarded his property that it could not be detached from his person. An attempt is made when an opportunity occurs, and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition. Many efforts have been made to reach the North Pole, but none have thus far succeeded, and many have grappled with the theory of perpetual motion without success-possibly from the fact of its non-existence-but can it be said in either case that the attempt was not made? It was well stated by Justice Gray in Com. v. Jacobs, 9 Allen, 274, that "whenever the law makes one step towards the accomplishment of an unlawful object with the intent or purpose of accomplishing it criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully crrried into effect in the particular instance."

The precise question here involved, under a similar statute, was considered in the case of Com. v. McDonald, 5 Cush. 365, where it was held that a person "may make an attempt-an experiment-to pick a pocket by thrusting his hand into it and not succeed, because there happens to be nothing in the pocket. Still, he has clearly made the attempt, and done the act towards the commission of the offense." The case of People v. Jones, 46 Mich. 441, 9 N. W. Rep. 486, is also in point. There the accused stuck his hand into the outside cloak pocket of a woman, but there was nothing in the pocket. It was held that the defendant was well convicted of the crime of attempting to commit larceny. The same question, under circumstances almost identical with those existing in this case, arose in State v. Wilson, 30 Conn. 500, and the court there said "the perpetration of the crime was legally possible, the persons in a situation to do it, the intent clear, and the act adopted to the successful perpetration of it; and, whether there was or not property in the pocket, was an extrinsic fact, not essential to constitute the attempt." In Clark v. State, 86 Tenn. 511, 8 S. W. Rep. 145, the question was also considered, and it was heid, where the proof showed that the defendant had opened the money drawer of

one Porbles, that a charge to the jury stating, if the defendant's "purpose was to steal when he opened the drawer, and his opening it was a part of the act designed by him for getting possession of the prosecutor's money, he would be guilty of an attempt to commit larceny, even though, at that particular time, there was no money in the cash drawer," was correct. The case of Reg. v. Collins was there considered, and disapproved. There are numerous other cases in this country, analogous to those above cited, in which it has been held that an intent to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed. Among them is the case of State v. Beal, 37 Ohio St. 108, where the defendant was indicted for the crime of burglariously entering into the warehouse of William Houts, with intent to steal, and take away his property. It was held, the burglarious entrance having been shown, that the defendant could be convicted, although it was proven that the warehouse did not contain any property capable of being stolen. In Rogers v. Com., 5 Serg. & R. 462, the indictment charged that the defendant, with intent feloniously to steal and carry away the money of one Earle from his person, put his hand into the pocket of the coat of said Earle. The court, overruling certain exceptions to the indictment, said: "The intention of the person was to pick the pocket of Earle of whatever he found in it, and, although there might be nothing in the pocket, the intention to steal is the same. He had no particular intention to steal any particular article, for he might not know what was in it." To a similar effect are the cases of Hamilton v. State, 36 Ind 280; People v. Bush, 4 Hill, 134; and People v. Lawton, supra. The elementary writers in this country have uniformly stated the rule as illustrated by the cases cited, and disapproved the English cases of Reg. v. McPherson and Reg. v. Collins; 1 Bish. Crim. Law, § 741; 1 Whart. Crim. Law, § 186.

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CONFLICT OF LAWS - JUDICIAL NOTICE REPLEVIN BOND.-As to whether courts of a State will take judicial notice of the laws of another State, was decided in the case of Osborne v. Blackburn, 47 N. W. Rep. 175, by the Supreme Court of Wisconsin. There it was held that in an action in Wisconsin on a replevin bond, given in an action in Minnesota, the court is not bound to take judicial notice of the laws of that State regulating the action of replevin, or, in the absence of proof, it will be presumed that such laws are the same as those of Wisconsin. Cole, C. J., says:

In the case of Rape v. Heaton, 9 Wis. 329, the law upon this question was thus laid down: "The act of congress requiring such faith and credit to be given to judgments, as they would have in the States where rendered, does not profess to determine in what manner the courts shall ascertain such effect, and cannot be construed as making it imperative on them to take judicial cognizance of the laws of other States. There are many cases where the courts are bound to decide upon contracts according to the laws of other States, where they were made, or are to be performed, but it has never been held that in such cases they were bound to take judicial notice of those laws. So here

the constitution and act of congress require the effect and credit of judgments to be determined according to the law of the State where rendered, but leave the manner in which courts shall ascertain those laws to be determined by the general principles of pleading and proof applicable to the subject. The act of congress does not undertake to determine this, and, even if it did, it is very doubtful whether it would be competent for congress to provide in what manner the laws of one State should be proved in another." Page 339. And the opinion proceeds to state the decision of this court on the point in this language: "The true rule is that in such cases courts are not bound to take actual notice of the laws of other States, in the absence of all proof, but may presume them to be in accordance with their own. So that whenever any difference is relied on, it is incumbent on the party relying on it, to prove such difference for the information of the court." The doctrine of Rape v. Heaton was followed in Walsh v. Dart, 12 Wis. 635; Hull v. Augustine, 23 Wis. 383; Pierce v. Railway Co., 36 Wis. 283; Horn v. Railway Co., 38 Wis. 462 Kellam v. Toms, Id. 592. But the question is so fully and ably considered by Mr. Justice Paine, in Rape v. Heaton, both upon principle and authority, that it is unnecessary to extend discussion here, or to attempt to fortify the reasoning which led the court to the conclusion so arrived at. We are all well aware that there are conflicting decisions upon the question, but we think Rape v. Heaton lays down the better rule and is sustained by the greater weight of authority. It is claimed that the Supreme Court of the United States, in Carpenter v. Dexter, 8 Wall. 513, establishes a different rule. One question in that case was whether it was necessary to prove the official character of the officer taking the acknowledgment of a deed. The court held that it was not. Unless the statute required the evidence of official character to accompany the official act which it authorizes, no such proof was necessary. And the court said: "Where one State recognizes acts done in pursuance of the laws of another State, its courts will take judicial cognizance of those laws, so far as it may be necessary to determine the validity of the acts alleged to be in conformity with them. In this case, also, the laws of New York are, by stipulation of parties, considered as evidence." In Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. Rep. 242, the court had occasion to consider the question. Mr. Justice Gray, in delivering the opinion of the court, says: "Upon principle, therefore, and according to the great preponderance of authority (as is shown by the cases collected in the margin), whenever it becomes necessary for a court of one State, in order to give full faith and credit to a judgment rendered in another State, to ascertain the effect which it has in that State, the law of that State must be proved like any other matter of fact. The opposing decisions in Ohio v. Hinchman, 27 Pa. St. 479, and Paine v. Insurance Co., 11 R. I. 411, are based upon the misapprehension that this court, on a writ of error to review a decision of the highest court of one State upon the faith and credit to be allowed to a judgment rendered in another State, always takes notice of the laws of the latter State; and upon the consequent misapplication of the postulate that one rule must prevail in the court of original jurisdiction and in the court of last resort." Again, in Chicago, etc. R. Co. v. Wiggins Ferry Co., 119 U. S. 616, 7 Sup. Ct. Rep. 398, the court, when considering the effect of the constitutional requirement that "full faith and credit shall be given in each State to the

public acts and records and judicial proceedings of every other State," say it implies that the public acts of every State shall be given the same effect by the courts of another State that they had, by law and usage, at home; and the learned chief justice says: "Whenever it becomes necessary under this requirement of the constitution for a court of one State, in order to give faith and credit to a public act of another State, to ascertain what effect it has in that State, the law of that State must be proved as a fact. No court of the State is charged with knowledge of the laws of another State, but such laws are, in that court, matters of fact, which like other facts, must be proved before they can be acted upon. This court, and the other courts of the United States, when exercising their original jurisdiction, take notice, without proof, of the laws of the several States of the United States; but in this court, when acting under its appellate jurisdiction, whatever was matter of fact in the court whose judgment or decree is under review, is matter of fact here." In view of these excerpts, we think the learned counsel is mistaken in the assumption, that the Supreme Court of the United States has laid down a rule in conflict with Rape v. Heaton.

USAGE AND CUSTOM-PAROL EVIDENce.The Supreme Court of Indiana, in the case of Scott v. Hartley, 25 N. E. Rep. 826, decided an interesting question as to the admissibility of evidence of usage and custom to control a contract. In that case, which was an action for breach of contract to purchase from plaintiff corn in Indiana at a certain price, "net, track, Philadelphia, Union Line," brought on defendants' refusal to receive the corn, defendants alleged a custom of persons engaged in the grain trade that, upon a sale of grain, to be delivered in Philadelphia, or other cities in the Eastern States, at a stated price on the "track," or "net," or "net track," such grain was to be delivered on the track at such city without payment of freight by the seller, and that the purchaser should pay the freight and deduct it from the purchase price of the grain, and thus fix the net price; the rates of freight thus paid being fixed by contracts between the purchasers and the transportation companies. It was held that there was no ambiguity in the terms of the contract, and evidence of such custom, tending to contradict the contract as to the "net price," was admissible. Berkshire, C. J., says, inter alia: The contention of the appellants, pure and simple, is to allow them to introduce parol evidence for the purpose of transforming the contract which they and the appellee made into another and different contract. They insist that the terms of the contract, as written, are not its terms, and that the true meaning of the contract is to be found in the usage which they contend prevailed when the contract was executed. If there is one proposition better settled than others by

a long line of decisions from this court, that proposition is that parol evidence will not be allowed to vary or control the terms and conditions contained in a written contract. The rule is so familiar that we do not feel called upon to refer to the cases, or any of them. It is clear, we think, that this case is within the rule. On the point that custom and usage cannot be given in evidence to contradict the express or implied terms of a contract free from ambiguity, in addition to the cases already cited, see note to Smith v. Clews, 11 Amer. St. Rep. 632, where many cases are collected and cited. Among others cited, we call especial attention to Hopper v. Sage, 112 N. Y. 530, 20 N. E. Rep. 350.

LANDLORD AND TENANT-COVENANT-REPAIRS-FALLING WALL.-In Ward v. Fagin, 14 S. W. Rep. 738, the Supreme Court of Missouri decide, that in the absence of covenants to repair, a landlord's duty to his tenant does not require that he should shore up a wall endangered by an excavation of the adjoining lot, although he has received due notice thereof, and he is not liable for an injury caused to the tenant's stock of goods by the falling of the wall in consequence of negligent excavation. Sherwood, J., says:

Aside from an express covenant to that effect, a landlord is not bound to keep the leased premises in repair, nor is he responsible in damages to his tenant for injuries resulting to the latter from the non-repair of the leased premises. In the absence of contractual obligation, the landlord as regards his tenant is only liable for acts of misfeasance, but not of non-feasance. This statement of the law is abundantly supported by the authorities, and in this State from an early period the familiar rule has been followed. Morse v. Maddox, 17 Mo. 573, and cases cited. The same principle is announced in the later case of Peterson v. Smart, 70 Mo. 38. Of course, if the landlord is not bound to repair unless upon covenant so to do, it must logically follow that any injuries arising from a failure on his part to repair, can give no cause of action to the tenant, whether resulting to the tenant's goods or to his person. If the landlord owes no duty to his tenant in this regard, then certainly negligence cannot be imputed to him, for negligence can only spring from unperformed duty. Cooley, Torts, (2d ed.) 791; Hallihan v. Railroad Co., 71 Mo. 113. And if it be conceded, as it must from the authorities, that the landlord is not bound to keep the leased premises in repair, the same principle will apply whether the tenant be lessee of the whole premises or of only a portion thereof; for what is true of the integer of nonliability must be equally true of each of its component fractions. From the same premise, to-wit, that a landlord is not bound to repair, it must follow as a necessary deduction that any injury to the leased premises, and through them to the tenant, caused by the negligent act of third persons, cannot create or cast on the landlord a liability which, prior to such negligent act, had no existence. That a landlord is not responsible in cases of this sort to rebuild or repair where a tenant was but the lessee of a portion of the tenement house, and such house was damaged by fire, and thus loss occasioned to the tenant's goods, has been directly adjudicated. Doupe v. Genin, 45 N.

Y. 119. In another case (Howard v. Doolittle, 3 Duer. 464), it was expressly ruled that the lessor was not responsible for the expenses incurred in shoring up a building leased by him, in order to prevent injuries thereto by the removal of a building by the adjoining proprietors. In Sherwood v. Seaman, 2 Bosw. 127, the landlord had leased to a tenant the building on lot 252 for a saloon and restaurant, for a term of three years. Grosvenor, the owner of lot 251, notified the landlord of 252 that he intended to excavate lot 251 to lay the foundation of a building thereon, in the course of which excavation the building on lot 251 fell, and destroyed the lessee's furniture and fixtures to a large amount; and upon these facts it was ruled that the landlord was not liable. So, too, in California, in similar circumstances, the tenant was killed by the falling walls of the building he occupied, in consequence of an excavation being made on an adjoining lot by the co-terminous proprietor; and although the landlord of the building had due notice of the excavation, and that in consequence thereof the wall would fall unless proper means were taken to prevent it, and none were taken, yet is was ruled that the landlord was under no obligation to uphold or to repair, and there being therefore no breach of duty, on his part, no action could be maintained against him by the administratrix of the decedent for damages for the alleged negligent act aforesaid. Brewster v. DeFremery, 33 Cal. 341. Authorities on this point, and illustrative of the general principle here involved, might be greatly multiplied. The industry of counsel for defendant has collated many of them. An elaborate discussion of this subject will be found in 6. Amer. Law Rev. 614, in which it would seem that most of the authorities then extant are reviewed. The cases of Looney v. McLean, 129 Mass. 33, and Toole v. Beckett, 67 Me. 544, are not in harmony with well-considered cases elsewhere, and the principle announced in those cases has been repudiated. Krueger v. Ferrant, 29 Minn. 385, 13 N. W. Rep. 158; Indiana, Purcell v. English, 86 Ind. 34; and Wisconsin, Cole v. McKey, 66 Wis, 500, 29 N. W. Rep. 279. The like position is taken in Canada. Humphrey v. Wait, 22 U. C. C. P. 580.

MORAL OBLIGATION AS A CONSIDERATION FOR CONTRACTS.

In taking a cursory view of this subject, the idea necessarily comes to us that it is of the utmost importance to find out the meaning of the term "consideration." In our studies on contracts, we are informed that the consideration is the material cause which moves a contracting party to enter into a contract, and, consequently, it is the very nature and essence thereof. Also, that a contract without a consideration is merely a nude pact, because the contractor engages to serve the contractee without compensation. The naked promises, or contracts, if you please, were at one time enforceable under certain conditions. The Roman law decreed